Nebraska and Oklahoma’s odd attempt to force pot prohibition back on Colorado

Yesterday Nebraska and Oklahoma sued Colorado, arguing that marijuana legalization there is having spillover effects on neighboring states and should be reversed because it violates federal law. The two states are asking the U.S. Supreme Court to declare that Amendment 64, the legalization measure that Colorado voters approved in 2012, is “unconstitutional and unenforceable under the Supremacy Clause” because it conflicts with the Controlled Substances Act.

Prohibitionists have been pushing this argument for years, but it will not get them what they want. As Deputy Attorney General James Cole explained to the Senate Judiciary Committee last year, the Justice Department decided against trying to block marijuana legalization in Colorado and Washington after concluding that there was no viable legal strategy to stuff the buds back into the jar. It is well established that Congress cannot compel states to punish activities they decide should not be treated as crimes. Although the federal government might have more success in challenging a state’s licensing, regulation, and taxation of marijuana businesses, Cole said, the upshot of such a victory would be a legal but completely unregulated market. Given the way the Supreme Court has interpreted the Commerce Clause with reference to the ban on marijuana, the feds might force Colorado and Washington to scrap their rules for growing and distributing marijuana. But they cannot constitutionally force Colorado and Washington to arrest, prosecute, and imprison marijuana growers and distributors.

If the Justice Department could not roll back legalization, what hope do Nebraska and Oklahoma have? They complain that Colorado has not taken adequate precautions to prevent interstate smuggling of marijuana, although it did impose a quarter-ounce limit on purchases by visitors in an attempt to address that concern. But if Nebraska and Oklahoma manage to overturn Colorado’s regulations, there will be no restrictions at all. And even if they could force Colorado to recriminalize marijuana cultivation and distribution (which they can’t), drug warriors have never been up to the task of preventing contraband from flowing to people who want it. Why would that reality suddenly change if Colorado rejoined the prohibitionist fold?

“Since the implementation of Amendment 64 in Colorado, Plaintiff States have dealt with a significant influx of Colorado-sourced marijuana,” the complaint says. “The detrimental economic impacts of Colorado Amendment 64 on the Plaintiff States, especially in regard to the increased costs for the apprehension, incarceration, and prosecution of suspected and convicted felons, are substantial.” Oklahoma, which was dry until 1959, could have made a similar complaint about states that dared to allow trafficking in booze, but that would not have given it the right to impose its prohibitionist policy outside its borders.

The problem that Nebraska and Oklahoma face is not that Colorado has decided to let people get high; it’s that Nebraska and Oklahoma insist on trying to stop them.